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Lucy H. KohU. S. District JudgeNorthern District of California (San Jose)

Career highlights: Appointed by PresidentBarack Obama to U.S. District Court, 2010;appointed by Gov. Arnold Schwarzeneggerto Santa Clara County Superior Court,2008; partner, McDermott Will & EmeryLLP, 200208; associate, Wilson SonsiniGoodrich & Rosati PC, 200002; assistantU.S. attorney, Central District ofCalifornia, 19972000; special counsel,U.S. Department of Justice, 199497;fellow, U.S. Senate Judiciary Committee,199394

Law school: Harvard Law School, 1993

Age: 46

NEWS RULINGS VERDICTS

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Thursday, December 4, 2014

California Supreme CourtState high court justices say Jessica's Lawhas backfiredIn two cases this week, the state Supreme Courtleft no doubt that the 2006 ballot measure Jessica'sLaw, forbidding registered sex offenders fromliving within 2,000 feet of schools and parks, was awellintended but bad law.

Entertainment & SportsMGA tussles with financial advisors overtoy saleThe Van Nuys company is trying to recoverhundreds of millions of dollars from the botchedacquisition of a French toy manufacturer.

U.S. Supreme CourtNarrowing precedent at the US high courtPrecedent is the U.S. Supreme Court's business, yetthere is little consensus about how the court shouldtreat its own past decisions. By Richard Re

Mergers & AcquisitionsSkadden, Latham handle $3.54B pharmadealAliso Viejobased Avanir Pharmaceuticals wascounseled by Latham & Watkins LLP in its sale toOtsuka Pharmaceutical, a Japansese competitorrepresented by Skadden, Arps, Slate, Meagher &Flom LLP & Affliliates.

California Courts of AppealState law requiring DNA sample collectionunconstitutional, appeals court rulesA state court of appeal here ruled on Wednesdaythat a California law requiring police to collect aDNA sample from anyone arrested of a felony isunconstitutional.

Mergers & AcquisitionsDealmakersA roundup of recent transactions across the stateand the lawyers involved.

LitigationAgency accused of unlawfully issuingpermits for oil and gas drilling techniquesThe Environmental Defense Center claims afederal agency failed to perform environmentalreviews and notify the public of the use of frackingand acidizing before signing off on the extractiontechniques.

CriminalLos Angeles city attorney receives funds for

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Lucy H. KohFrom activist to prosecutor, corporate lawyer to the bench, JudgeLucy Koh is making a big impact.

By Hadley Robinson

SAN JOSE Lucy H. Koh used tostare out the window during thehourandahalf bus ride to herpublic school in Port Gibson, Miss.every day. She and her siblings werethe only AsianAmericans at apredominantly black elementaryschool.

Winding through the woodedstreets, she noticed the parochialschools with white children inuniform marching around the schoolyards and thought of the differenceto her own classroom, in a trailer.The teacher sometimes abandonedthe class to do her own groceryshopping.

The imbalance of opportunity forher classmates, who often did nothave money to afford backpacks andbrought their books to school incereal boxes, was one experience thatignited her interest in the law, Kohwrote in an article while in lawschool.

She continued to see racial andgender discrimination in her younglife, and as an undergraduate andlaw student at Harvard University,

she organized rallies and campaigns advocating for retention of more minorities andfemale tenured professors. In a job search guide published by Harvard Law School,Koh wrote her career goals were to work at the Department of Justice Civil Division andfor the NAACP Legal Defense and Educational Fund, where she had interned.

Two decades later, Koh has found herself in a different place than she anticipated.As a federal judge in Silicon Valley, she is making crucial decisions about the wealthiestcompanies in the world.

Koh referees billiondollar battles between smartphone behemoths, tackles emergingprivacy concerns, and recently shocked the legal world when she rejected as too low a $324 million settlement between a group of engineers and their employers.

She has been unafraid to upset the powerful companies and their lawyers when theyventure inside her San Jose courtroom, sometimes ruling for the underdogs, andkeeping a close eye out for unfair treatment and uninhibited power.

As an undergraduate at Harvard, a dean admitted to Koh and other diversity

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Prop. 47 casesThe office will get over $400,000 to fill 15 positionsto handle newly classified misdemeanor casesunder the new law.

Intellectual PropertyPatent case filings on pace to reach threeyear nadirPlaintiffs are currently on pace to file the fewestpatent lawsuits in three years, following asustained period of lackluster litigation activityover the second half of 2014, according to a newround of data.

CriminalIrony abounds in the case of the 'accidentalwitness'How do you question a gang witness when"snitches get stitches?" By Richard La Fianzaand Frank Loo

Labor/EmploymentTo WARN or not to WARN, that is the issuethe court facedMust a financially troubled employer, anticipatingthat a sale of its business will solve its financialproblems, give federally mandated layoff notices toits employees? By Ivan L. Kallick

Civil RightsWise up, and make websites accessibleThe Internet has brought a wealth of newexperiences within reach of nearly everyone in ourcountry. Yet it has also created a new breed ofsegregation. By Caroline E. Jackson, KathrynA. Robertson and Adina S. Katz

Corporate CounselAmanda T. HarrellSenior vice president of business and legal affairsat United Artists Media Group Santa Monica

Judicial ProfileLucy H. KohU. S. District Judge Northern District of California(San Jose)

GovernmentSome voice doubt over new state equalprotection lawU.S. Supreme Court decisions have eroded a keyprecedent and hurt minority advocates' confidencein challenging allegedly discriminatory laws infederal court. In response, this October they passedCalifornia's AB 2646.

advocates that one chemistry professor forbade women from being in his lab group.The dean suggested they "raise hell" but didn't guarantee that would get results.

"I raised hell, but they did nothing because that professor won a Nobel Prize," Kohwrote in the law school publication. "Nobel laureates can discriminate with impunity."

Koh may no longer be the activist of her younger days. But she is just as outspoken,and as a judge, she has tried to ensure companies, executives, or criminals no mattertheir size or influence can't act with impunity either.

Treading New Ground

Koh's profile has risen tremendously in the four years since President Barack Obamaappointed her, the first KoreanAmerican district judge, to the Northern District bench.She is humble about the attention, and has a strict policy against talking on the recordto the press. She declined comment for this article.

She has become wellknown because her highprofile cases often involve leadingtechnology companies and emerging areas of the law. But her decisions have attractedpublicity because her analysis often treads new ground.

In September, Koh allowed consumers who had personal information stolen in adata breach of Adobe Systems Inc. to proceed with a lawsuit. Since litigation involvinghacking attacks has surged in the last two years, most federal judges have sided withcompanies claiming that unless consumers are harmed by a breach, they cannot sue.

Not Koh. She wrote, "the threatened injury here could be more imminent only ifPlaintiffs could allege that their stolen personal information had already beenmisused." Adobe Systems Inc. Privacy Litigation CV135226 (N.D. Cal., filed Nov. 11,2013).

Defense attorneys have said Koh's decision, and a similar one from a San Diegofederal judge, make it tougher for companies to get a data breach case dismissed earlyin California.

Last year, in a class action alleging Google scanned emails to collect personal data formarketing purposes, Koh rejected the company's argument that its practices were partof the "ordinary course of business," which exempts actions from violations of federalwiretap laws. Google Inc. Gmail Litigation, MD132430 (N.D. Cal., filed April 1, 2013).

The decision differed from other judges' read on the exception, including hercolleague U.S. Magistrate Judge Paul S. Grewal, who interpreted it more broadly.

Though she later ruled for Google in a class certification motion, ending the case, herearly decision had ramifications. Internet users have filed followon complaintsaccusing companies of scanning messages in violation of federal law, citing Koh'sopinion.

Daniel J. Solove, a law professor at George Washington University, authored aleading privacy textbook, "Information Privacy Law." The new edition includes some ofKoh's decisions. He said her cases are the ones "that everyone in the field is talkingabout."

Experts at the American Law Institute say though there is no official tally, Koh islikely handling more privacy cases than any other federal judge in the country.

"They present complex issues about how to understand privacy harm and novelissues about how to apply various laws to very new situations and technologies," Solovesaid. "Far too often, judges just seem in a hurry to get rid of the cases they seem toodifficult and different and so many judges dispatch the cases too quickly, withoutadequately analyzing them. What impresses me about Judge Koh is that she doesn't dothat. She engages with the issues and isn't dismissive."

Battle Tested

In the courtroom, Koh has a reputation of frankness and candor, letting lawyersknow exactly how she feels, sometimes to the point of discomfort. She isn't afraid to putlawyers on the spot.

In a famous case involving Apple Inc.'s accusations that Samsung Electronics Co.Ltd. infringed its phone and tablet design patents, Koh once held both companies'

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tablets next to each other, and asked Samsung's lawyer Kathleen M. Sullivan a formerStanford Law School dean if she could tell which was which.

After several uncomfortable seconds, the Quinn Emanuel Urquhart & Sullivan LLPpartner replied "not at this distance you're honor," before turning to her legal team forhelp.

Koh was handling a mountain of motions, evidence and objections between the twocompanies, represented by lawyers with decades of experience on her.

She frequently admonished the attorneys for their incessant motions forreconsideration, calling them "out of control." She famously asked one of Apple'slawyers if he was "smoking crack" when he presented a lengthy witness list midtrial.Apple Inc. v. Samsung Electronics CV111846 (N.D. Cal., filed April 15, 2011).

Mark Lemley, a Stanford Law School professor, followed the AppleSamsung case."Particularly for a young judge," he said, "the ability to control some extremely assertivelawyers in a really important case and to take command of a courtroom was reallyimpressive."

While the AppleSamsung motions and trial proceeded in 2012, Koh was having atough year in her personal life. Her father had stomach cancer, and had moved in withher family in April after two months in the hospital.

During the trial, he went into the hospital for the last time, and Koh was dealing withhis surgeons, a palliative care team and nurses, said Koh's husband MarianoFlorentino Cuellar, another Stanford Law School professor who was recently appointedto the California Supreme Court.

Koh slept in her dad's hospital room many nights during trial, Cuellar said.

"In the time Lucy was presiding over AppleSamsung having all the energy andhard work one needs to get it right, to make sure everyone understands the facts, tomake sure the jury had all the instructions they need she was dealing with watchingher father get sicker and weaker," he said.

Koh's father died soon after the first AppleSamsung trial ended.

An unexpected career path

Koh's evolution from civil rights and immigration advocate to a judge handlingimportant technological and legal conundrums came from Koh seizing immediateopportunities.

She studied anthropology and sociology in college at Harvard University, andpursued her law degree there fervent about becoming a public interest attorney.

Her concerns about poverty and her quest to pursue justice for minorities spawnedfrom her childhood growing up in Mississippi and Oklahoma. Her mother, animmigrant from Korea, taught at Alcorn State University, the nation's first historicallyAfricanAmerican land grant college.

"Lucy is interesting because she has had a chance to see a lot of different parts of thecountry," Cuellar said. "I think it makes her feel like everybody has a role to play inmaking sure our government institutions live up to their promise. It sensitized her tothe diversity of our country and how all our institutions need to respond to the needs ofeverybody."

Koh became the Women's Law and Public Policy Fellow after leaving law school, andshe could pick her placement. She chose to spend her time as a fellow in the U.S.Senate Judiciary Committee in Washington, D.C.

From there, she moved to President Bill Clinton's Justice Department, working oncivil rights, immigration and other legislative affairs.

Despite having little interest initially in criminal law, after hearing her colleagues raveabout their experiences as assistant U.S. attorneys, Koh decided she would like to try it.She got a job in Los Angeles, working on general crimes and major frauds, and waslater exposed to intellectual property law through cases involving identity theft, hackingand counterfeiting.

As the late '90s Web boom grew, Koh took the opportunity to get nearer to the

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technology hotspot, and her grandparents and family, in San Jose. She was hired to dointellectual property work at Wilson Sonsini Goodrich & Rosati PC and laterMcDermott Will & Emery LLP, both in Palo Alto.

Koh and Cuellar met over breakfast with a mutual friend soon after Koh moved toWilson Sonsini and Cuellar began teaching at Stanford. Cuellar was impressed.

"She is very passionate and energetic about life and about the law," he said. "She islively in conversation. She is very engaging with people. She likes people, she likes toconnect with people, she likes to know their stories."

The couple has two children.

Gov. Arnold Schwarzenegger appointed her to a judgeship in Santa Clara County in2008, but an opening on the federal bench soon came up when U.S. District JudgeRonald M. Whyte took senior status. It was the first vacancy in San Jose in 11 years.Koh jumped on it.

Though the senators in the Judiciary Committee questioned Koh about her earlypolitical activism, her varied experiences as a criminal prosecutor, corporate lawyer andSchwarzenegger appointee helped her get bipartisan support, passing unanimouslythrough committee and off the floor.

Koh took Whyte's seat, and the two judges have become close. Whyte said Koh is awonderful colleague who never lets a birthday, marriage or retirement pass without acelebration or recognition.

"I think she's incredibly hard working," Whyte said. "She's demanding in gettingpeople to do things in a timely fashion. She's very smart, and can handle the toughcases with real expertise."

Manuel Araujo was a public defender in San Jose when Koh took the bench. Thejudge held meetings with the defenders and prosecutors to get feedback, he said.Araujo had several hearings and a trial in front of Koh.

"She's very demanding in the sense that she wants thing to be wellorganized, shedoesn't like surprises at the last minute," he said. "You could see it in her eyes if youdisplease her because you haven't done the homework. She won't yell at you but youcan tell by her expression, her frustration, that you messed up with her."

Scott D. Baker, partner at Reed Smith LLP, tried a patent case before Koh.

"Her trial rules are very particular," Baker said. "She doesn't want anything to stopthe actual flow of testimony. She doesn't want to have the jury sitting around idly, whilelawyers deal with legal issues with her."

But even if Koh is not willing to waste jurors' time, she dedicates huge amounts of herown to resolving cases. Baker had another patent case with Koh in which shevolunteered to be the settlement judge.

"It was the right move and it worked out," Baker said. "She got the case settled andthe parties were impressed with how diligent she was, and also everybody wascomfortable having her be the trial judge even if we didn't settle."

Strong on Appeal

Koh's record has thus far held up in the 9th U.S. Circuit Court of Appeals, with nosignificant reversals. But one of her boldest decisions, rejecting a $324 million antitrustsettlement between Silicon Valley technology companies and their employees, now facesa stiff test.

Attorneys for the companies Apple, Google, Intel Corp., and Adobe Systems calledher decision a "clear legal error" in their appeal.

The plaintiffs, current and former employees at the tech companies, had originallyasked for $3 billion in damages.

"I wish you had told me how weak your case was for class certification and all ofthese Daubert motions," Koh told the plaintiffs. "I mean, that would have been helpfulinformation."

She had written a detailed 86page order granting the plaintiffs' motion for class

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certification, taking into account expert reports. Koh's frustration at the hearing waspalpable.

Lemley said the case is an example of Koh not only handling highprofile cases, butwriting opinions that make news.

"Rejecting the settlement in the nopoach case and saying you have to go to trial ismore newsworthy than letting the case go away," Lemley said. "It's not that she'soutside the norm of the law, but she has not shied away from taking on the toughcases."

In their appeal, the defendants blasted the judge's decision, and asked the 9thCircuit to intervene and approve the settlement. In re HighTech EmploymentLitigation, CV112509 (N.D. Cal., May 23, 2011).

"It was clearly erroneous for the district court to substitute its own judgment for theparties' agreement based on an unprecedented 'benchmark' analysis," wrote Robert A.Van Nest, of Keker & Van Nest LLP.

The 9th Circuit has agreed to take the case but has not yet set a date for oralargument.

Koh's decisions have survived scrutiny from the U.S. Court of Appeals for the FederalCircuit, which handles patent challenges, as well.

The first AppleSamsung trial resulted in a $1 billion jury verdict that has since beentrimmed and retried. Koh has made important posttrial decisions, including denyingApple's request to ban the sale of some of Samsung's older devices by granting apermanent injunction.

On appeal, the Federal Circuit found flaws in Koh's original analysis and remandedpart of the motion back to her, with a loosened standard for granting an injunction.

But in a 42page order, Koh rejected Apple's request for a sales ban again, findingthe company has failed to prove that the three minor infringed software patents weredriving consumer demand for Samsung's products. The Federal Circuit upheld herdecision.

Cuellar said although some of his wife's decisions are closely followed by the public orlegal community, her dedication to the law comes from within.

"Sometimes you're under a lot of scrutiny and people are analyzing every move andsometimes they're not, but the motivation to get it right has to come from inside," hesaid. "She has that in spades."

Here are some recent cases in front of Judge Koh and the attorneys involved:

Columbia Casualty Insurance Co. v. Gordon Trucking, American Int'l SpecialtyLines Insurance Co., CV0905441 insurance

For the plaintiff: Patrick A. Cathcart, Los Angeles County Superior Court, LosAngeles; Joseph P. Collins, Pacific Palisades

For the defendant: Frank Kaplan, Bingham McCutchen LLP, Santa Monica

LiftU v. Ricon Corp., CV101850 patent

For the plaintiff: Scott J. Allen, Pacific Grove

For the defendant: Barry Coyne, Reed Smith LLP, Pittsburgh, Penn.; Scott D. Baker,Reed Smith LLP, San Francisco

U.S. v. Orellana, CR0996 narcotics

For the prosecution: Grant P. Fondo, Goodwin Procter LLP , Menlo Park; Jeffrey D.Nedrow, U.S. attorney's office, San Jose

For the defense: James P. Vaughns, Oakland

Los Padres Forestwatch v. U.S. Forest Service et al., CV103653 environmentaldispute

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Lucy H. KohUnited States DistrictCourt of California

San Jose

James E. HermanSuperior Court ofCalifornia SantaBarbara County Anacapa Building(South County)

Harry MarkDorfman

Superior Court ofCalifornia County ofSan Francisco CivicCenter Courthouse

James K. VoyseySuperior Court ofCalifornia SantaBarbara County Lompoc Division(North County)

Donald S.Kennedy

Superior Court ofCalifornia County ofLos Angeles CentralArraignment Court

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For the plaintiff: Michael Graf, El Cerrito

For the defendant: Peter C. Whitfield, Baker & Hostetler LLP, Washington, D.C.

In re Google Inc. Gmail Litigation, CV132430 privacy

For the plaintiff: Sean Rommel, Wyly~Rommel PLLC, Texarkana, Texas; JeromeTapley, Cory Watson Crowder & DeGaris, P.C., Birmingham, Ala.

For the defendant: Michael G. Rhodes, Whitty Somvichian, Cooley LLP, SanFrancisco

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